Law Sessions With Jennifer Housen’s Podcast

The Three Pillars of Parliamentary Sovereignty

Subscriber Episode • • Jennifer Housen • Season 4 • Episode 2

Share episode

Subscriber-only episode

Parliamentary sovereignty forms the cornerstone of the UK's constitutional framework, establishing Parliament as the supreme legal authority with the power to make or unmake any law without limitation or challenge from the courts. Dicey's tripartite concept explains how Parliament can legislate on any subject, cannot bind its future iterations, and produces Acts that cannot be invalidated by any person or body in the UK.

• Parliament's legislative supremacy means it can make laws on any subject and is subordinate to no one
• Examples of Parliament's supreme power include changing royal succession rules and creating devolved administrations like the Scottish Parliament
• UK courts presume Parliament doesn't intend to legislate contrary to international law, but domestic law prevails when conflicts arise
• Parliament cannot bind future parliaments through the principles of express and implied repeal
• No person or body can question the validity of parliamentary enactments in court
• EU membership and the Human Rights Act have introduced complexities to the traditional understanding of parliamentary sovereignty

Join us next time as we explore the concepts of manner and form, entrenchment, and their implications for parliamentary sovereignty in UK law.


💡⚖️ Let’s learn the law together—one session at a time!

Speaker 1:

Welcome back to the second segment of this public law law session on parliamentary sovereignty. Now, before the break, we considered the background and a brief definition and I introduced you to Dicey's tripartite concept, and what we want to start with now is to start by looking at the first point that Dicey makes, and it is that Parliament can make law concerning anything in respect of its lawmaking abilities. Now, parliament is said to be legislatively supreme. It is subordinate to no one or no thing. It is omnipotent in its own omnipotence, as it were. Now, unlike in other countries where there is a written constitution, where ordinary or constitution courts have the power to determine whether the acts of the legislature are constitutional, in the UK the doctrine of parliamentary supremacy or parliamentary sovereignty dictates that parliament can legislate, even on constitutional matters, by a simple act of parliament. So, for example, in your own country, you might consider. If you are outside the UK, you would consider, for example, looking at what your constitution says, and you would arguably, if this was going to be affected by your legislature, it would have to see whether it conflicts with the constitution. In the UK that's not the case. Parliament can pass an Act of Parliament and it can get rid of certain rights. Now, statutes are made by the Queen in Parliament, a body with three components the Queen and both Houses of Parliament. Now the Parliament Act of 1911 amended this so as not to require the approval of a bill by the House of Lords under certain circumstances. So, in effect, what you have is what is termed a suspensory veto. So there are certain situations where a bill can be passed without the Lord's input. Now this was amended further to reduce the period of the veto by the Parliament Act of 1949. Now the implications, of course, is that this body is indeed omnipotent and free to legislate on anything it wishes and immune to any questions of validity in the UK courts. This view, of course, adheres to the traditional theory of parliamentary sovereignty.

Speaker 1:

Now, when we consider its ability to legislate on any subject, then there are certain examples that we have seen, both historically and in respect of the statutes. Now, parliament, for example, has changed succession to the throne in the past in respect of the Bill of Rights 1689, and also in the Act of Settlement 1701, and His Majesty's Declaration of Abdication Act of 1936. All of these considered succession to the throne. Now, indeed, when you look at other acts being considered in recent times, we see that they are seeking to also affect succession rights in respect of the monarchy, in that, for example, if William and Kate were to have a child and the first child is a girl, well, if the second child is a boy, the boy takes precedent in the line of succession and it is under consideration at the moment to see whether or not that ought to be changed. Parliament is free to change. These are the examples. Parliament has also transformed itself into a new body, and they've done that through the Act of Union with Scotland, 1707, and also the Act of Union with Ireland in 1800. Now Parliament has prolonged its own existence during wartime and we have seen Parliament create a Scottish Parliament with its own limited powers to legislate for Scotland, and we see the Scotland Act 1998.

Speaker 1:

Now the unlimited legislative powers of Parliament needs to be considered when we consider, for example, domestic versus international law. So, for example, there's a presumption of the courts that when construing statutes, parliament does not intend to legislate contrary to international law, international law, and so, as far as possible, a statute will be interpreted to avoid the conflict between the UK statute and the principles of international law. But that is not to say if the international law cannot be aligned to UK law. It may very well be that the House of Lords cannot do that sort of balancing exercise. So when you look at the case of Mortensen and Peters in 1906, this concerned fishing in waters covered by both international and UK law, and it was held that UK law was valid even though it contradicted international principles. Now, lord Justice General said that an act of Parliament duly passed by the Lords and the Commons and assented to by the Crown is supreme and we are bound to give effect to its terms.

Speaker 1:

Now, that's interesting because when you look at the case of Factor Thame ex parte Factor Thame, which you will get to more grips with when we look at EU law, which is an aspect of this series of public law lectures, you will see that in Factor Tame, the idea that it affected an EU law right meant that the High Court in the UK did seek some guidance on this from the CJU, and so that is a far cry from Mortensen. Equally, when we look at the case of Cheney and Conn, which is where this gentleman considered well, he's not going to pay that part of his taxes that went to weapons of mass destruction. It can't be that you choose what part of the law, as it were, to abide by. Now, justice Ungood Thomas, in that case, said that what the statute itself enacts cannot be unlawful, because what the statute says and what it provides is itself the law, and it is not for the court to say that a parliamentary enactment the highest law in this country is illegal. So international law cannot limit parliament's power.

Speaker 1:

What about the passage of time, then? And retrospective legislation? Will that limit Parliament's power? Well, cases in point Verma Oil and Load Advocate in 1965, a case we've touched on variously for separation, in this case to avoid paying damages for wartime damage. The War Damage Act of 1965 denied entitlement to compensation for acts which were already committed, even though they weren't covered at the time. Now the War Crimes Act of 1991 is a similar example, which quite rarely we see this, but it provides retrospectively for criminalizing war crimes. Again, parliament does not limit itself by the passage of time. So when you look at that first legislative supremacy, we see that in the cases Parliament is constrained, and we see certainly in the statutes that it is not constrained.

Speaker 1:

What about Dicey's second point? Dicey says that a Parliament cannot bind a future Parliament. Make no mistake when we talk about Parliament we're talking about this Parliament, the Parliament sitting. That is what is supreme, because parliament can wipe out what a previous parliament has done. Now, parliament cannot bind a future parliament. Let's take a look at that. What that is saying is that it cannot limit its own legislative powers for the future, nor bind its successorsors, nor its predecessors. Now, the only limit some commentators say that it has is that it can't detract from its own continuing sovereignty, so it couldn't pass an act which then compromised its sovereignty.

Speaker 1:

And the way we see this power in respect of not binding, or indeed binding its successor, or indeed binding its predecessor, we have the principles of express repeal and implied repeal. Now, express repeal is when Parliament wishes to repeal an Act of Parliament in whole or in part. It normally does so by an express clause to that effect in the later Act, but maybe it doesn't do this, but by virtue of a later Act. We see that there is some conflict. Well, implied repeal If a later legislation is inconsistent with earlier legislation, the Court invokes the doctrine of implied repeal, whereby the earlier Act is impliedly repealed to the extent.

Speaker 1:

Now there are a couple of cases that you certainly need to know about Vauxhall Estates and Liverpool. An earlier act favored by the plaintiff was impliedly repealed, and Justice Avery said that until the contrary were decided, no act of Parliament can effectively provide that no future act shall interfere with its provisions. Now, this was despite the earlier act of Parliament stating that any act inconsistent with this act shall cease Now. Shall in an act of Parliament mean must, shall cease to have effect or shall not have that effect Now. These latter words were seeking to tie the hands of a later Parliament. This was followed, of course, by the Court of Appeal in Ellen Street Estates and Minister of Health, where Lord Justice Mowen said it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter. There can be no implied repeal. Now, this is said to be one limitation to parliamentary sovereignty Parliament cannot bind the hands of a future parliament. But I want you to bear in mind that this aspect of parliamentary sovereignty has been affected by the UK's membership of the European membership into the EU, and of course we will look at this in some depth later on.

Speaker 1:

The third point, of course, is the validity of an act of Parliament, and the idea is that no person or body has the authority to rule on the validity of Parliament's enactment, can it be challenged in the courts? Well, what we have seen is that the courts cannot challenge it, whether it be for procedural or for a substantive basis. When you look at countries that have a written constitution, a codified constitution, we see that the ordinary or constitutional courts have jurisdiction to determine whether any sort of legislation is unconstitutional. You don't have that in the UK because the Act of Parliament is supreme and it is that the Act of Parliament remains unquestioned. And two cases are clear on this point Edinburgh and Dalkeith Railway and Watch Hope and Picken and British Railways Board.

Speaker 1:

Of course, other than inspecting the parliamentary role to ascertain that it has passed through both houses and received the Royal Assent, a court will not inquire into any procedural or substantive irregularities, as the bill proceeded through parliament.

Speaker 1:

Now, this is in effect enshrined in the bill of rights 1689, which provides that proceedings within the houses cannot be questioned in the court. It is for the speaker of a particular house to ensure that procedures, example the standing orders, are complied. It is not for the court. So when we look at Picking and British Railway, we see Mr Picking saying that the courts have not complied. Sorry, parliament had not complied with the procedures before in respect of passage of legislation, courts said that's not for us. Now, whether the traditional theory remains impregnable, we will consider shortly and in particular we will look at the impact of the EU membership and the enactment of the Human Rights Act. We will take a short break and immediately on our return we will consider something important before we get to EU membership on the HRA, we will look at manner and form. We will look at entrenchment and what it means in UK law, immediately after this short break.